Criminal Justice White Paper:

Submitted by on 9 August, 2002 - 8:27

The Government says it wants "to rebalance the criminal justice system in favour of the victim and community". In practice, though, the Criminal Justice White Paper is a charter for fitting up suspects. David Blunkett says that "too many guilty go unconvicted". If his plans go through, the likely consequence is that too many innocent people will be convicted instead. Nicole Ashford outlines the plans.

Previous convictions will be admissible in court where "relevant"

This gives the police a green light to round up anyone they know to have committed a similar offence to the one under investigation, to charge him despite a paucity of evidence and rely on the fact of him being a "bad lot" to gain a conviction. The "usual suspects" deserve the same standards of justice as anyone else: this will deny that right. There are already circumstances - strictly limited - in which previous convictions or indeed acquittals are admissible evidence.

For example, a serial rapist who had attacked several women in the same way was eventually jailed after evidence of the earlier offences, of which he had been acquitted, was given in his final trial. But to widen the provision risks serious miscarriages of justice.

Hearsay evidence will be admitted "where there is a good reason"

Hearsay evidence means the evidence of one person saying: I heard someone else say something which incriminates the defendant. With hearsay evidence the defence cannot cross-examine the person who was meant to have made the incriminating statement in order to establish his or her motivation for making it or to establish whether it was in fact said at all in the way reported. This is another means of weakening defence cases.

Jury trial

Having failed in several previous attempts to impose a general restriction on jury trials, the Government has switched to a piecemeal approach. So-called "complex" trials, such as certain cases of fraud, will be tried by a judge only - as will cases where a jury is feared to be vulnerable to intimidation or bribery. Defendants will have the choice, in certain cases, of a "judge-only" trial.

These plans are an insult to jurors. Is a group of 12 randomly-picked people really likely to be so collectively stupid that they cannot deal with complex evidence? And there are other ways to prevent intimidation of juries than to impose judge-only trials.
The fear must be that this plan is the thin end of the wedge. If the proposals become law, there is every chance that in a few years defendants will be put under massive pressure to opt for the judge-only choice. The presumption will be that if they want a jury trial they must be guilty and trying to fool a gullible jury.

Double jeopardy rule to go

The Government wants to scrap the double jeopardy rule, which prevents defendants, once acquitted, being tried again for the same crime. Retrials will be permitted "if compelling new evidence comes to light". But the formula itself is prejudicial. If the evidence must be "compelling" - the implication is that the trial starts with a presumption not of innocence, but of guilt.

Supporters of scrapping the double jeopardy rule frequently cite the Stephen Lawrence case as a prime example of why the change is needed. They should be reminded that the reason the Lawrence suspects weren't properly tried was the racism and crass incompetence of the police. Nothing, whatsoever, to do with the iniquities of the double jeopardy rule. Attacking civil liberties does not equal justice for Stephen Lawrence.

Increased sentencing by magistrates

The Government wants to increase the length of sentences which magistrates can give - from six months to a year. Magistrates are unelected and unaccountable. They are overwhelmingly white and middle-class. Their powers should be curtailed, not extended.

Several other proposals will undermine defendants in court. Witnesses are to be allowed to refer to their original statements. This might seem uncontroversial. But if a witness says one thing in his statement and something else under cross-examination, that implies concerns about reliability one way or the other. Yes, it is no doubt a trick used by lawyers to try and "trip up" witnesses - but not one, I think, that would fool a half-competent jury.

Defendants will be required to reveal more details of their planned defence to the Crown - before they know how prosecutors will deal with the evidence against them. The Government wants to "remove restrictions on the jury being invited to draw inferences from discrepancies between pre-trial defence statement and defence case at trial". There are all sorts of reasons why a defence might change in a short space of time: this proposal is based - once again - on the assumption that defendants are invariably guilty.

The Government's basic premise in putting forward these proposals - that a lot of victims of crime are badly treated and this needs to improve - is not unreasonable. It is true that a lot of victims of crime are treated very badly. Victims and witnesses are not kept informed about the process of a trial, of appeals and so on.

There is a lot of space for improvement in the way that victims and witnesses are dealt with: separated facilities at court, for example, so they aren't left to wait in a corridor alongside the defendants friends, and so on. But curtailing defendants' rights and locking up innocent people does nothing to help victims. On the contrary: the real offender is not stopped from offending again, and in the process a new victim - the innocent, wrongly convicted defendant - is created.

The Government is now "consulting" on selected parts of these proposals. The consultation closes in October and legislation is expected in the New Year. You can email your comments to the Home Office: justiceforall@homeoffice.gsi.gov.uk

Tough on the causes?

The famous Blair promise to be "tough on the causes of crime" is nowhere in the Criminal Justice White Paper. According to human rights organisation Liberty, prisoners are 13 times as likely to have been a child in care, 14 times as likely to be unemployed and 10 times as likely to have been a regular truant. At least 43% of sentenced prisoners have three or more types of mental illness. The prison population has soared to over 72,000. If the Government seriously wanted to tackle crime, this would be a good place to start.

Turning psychiatrists into jailers

Alongside its plans on criminal justice, the Government is proposing a change to the Mental Health Act, allowing the indefinite detention of people who are believed to pose a risk to society, without trial or public hearing.

The plans have been strongly criticised by psychiatrists and mental health campaigners. The doctors point out that their job is to treat ill-health - not to act as surrogate jailers. Mental health charities say the proposals will deter those in need of psychiatric help from seeking it - for fear they could be arbitrarily locked up.

Research from the Maudsley Hospital in London, cited in the Guardian, suggests that, even with the best predictive tools, "you have to lock up six potential offenders (without criminal charge) to prevent one person committing a crime". If these plans go through, the most basic civil liberty of all - liberty itself - will be under threat.

Terrorism Act breaches human rights

Since 1997, Labour has extended anti-terrorism legislation twice - through the Terrorism Act 2000 and through emergency legislation introduced after September 11. But parts of the emergency legislation have now been ruled unlawful, because they breach human rights law.

A judge has ruled that nine foreign nationals held under provisions which allow the indefinite detention of terrorist suspects without trial were being illegally detained because the provisions do not apply to UK citizens and are therefore discriminatory.

However, the court accepted that the level of terrorist threat to the UK was such that the Government could reasonably detain people without trial. Now some politicians - among them Labour MP Andrew Dismore - say the best thing to do is to extend detention without trial to UK nationals too! The unnamed suspects remain in jail while the Government appeals against the ruling.

Detention without trial is not the only objectionable aspect of the anti-terrorism laws. The Terrorism Act also widened the definition of terrorist to include almost anyone planning the overthrow of a foreign government. Had this law existed in the 80s, it would have criminalised many anti-apartheid activists.